Stay - Alleged Parallel Criminal Proceedings
Ex parte Steinberg, etc., [Ms. 1190576, Jan. 15, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Bryan, J.; Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, and Stewart, JJ., concur; Mitchell, J., recuses) issues a writ of mandamus directing the Etowah Circuit Court to lift a stay of a civil action. The circuit court stayed the entire action on the motion of Defendant Daughtery who asserted that because of a federal criminal investigation, a stay of the entire action was necessary to protect her right against self-incrimination. The Court first notes that “[a] petition for a writ of mandamus is a proper method by which to challenge a trial court’s decision on a motion to stay a civil proceeding when a party to that proceeding is the subject of a criminal investigation.” Ms. *5.
“A party requesting a stay of a civil case on the basis of the Fifth Amendment must ‘clearly demonstrate’ that the party ‘is the subject of an ongoing, and overlapping, criminal investigation.’” Ms. *6, quoting Ex parte Ebbers, 871 So. 2d 776, 785 (Ala. 2003). The Court vacates the stay because “Daugherty summarily asserted that the allegations against her in the civil action are identical to those in a federal criminal investigation. She further asserted that, although a ‘previously issued criminal information issued against [her] has been withdrawn and no indictment has yet to issue, [her] criminal attorney has represented that the threat of indictment is still present.’ However, those statements are simply assertions that are unsupported by any evidence; such assertions do not clearly demonstrate the existence of a criminal proceeding parallel to this civil proceeding.” Ms. *9, (internal quotation marks omitted).